#Digitalindia Schemes Must Be Preceded by a Data Protection and Privacy Law #Aadhaar

Click on the ‘Register Now’ button at the government’s new Digital Locker site and the first step you are asked to complete is to “enter your Aadhar card number.”

In a petition filed before the Supreme Court, Sudhir Yadav, a common citizen, has pointed out that the government has made possession of an Aadhaar number mandatory for creating an account the Digital Locker service, “despite the clear direction of the court in Justice K.S. Puttaswamy (Retd.) & Anr. V. Union Of India & Ors.” that “no person should suffer for not getting the Aadhaar Card in spite of the fact that some authority had issued…”. On March 16, 2015, court reiterated this position:

“In the meanwhile, it is brought to our notice that in certain quarters, Aadhaar identification is being insisted upon by the various authorities, we do not propose to go into the specific instances. Since Union of India is represented by learned Solicitor General and all the States are represented through their respective counsel, we expect that both the Union of India and States and all their functionaries should adhere to the Order passed by this Court on 23rd September, 2013.”

In my view, it is clear that no government benefit can be linked to the condition that you have an Aadhaar card.

In a conversation with Sudhir Yadav, I asked why he had filed his petition. His answer was straightforward: “I am interested in the maintenance of the dignity of all constitutional institutions. The Supreme Court has clearly said that the Union of India cannot insist on the possession of an Aadhar number before conferring any benefits, so why is this order being violated?”

He went on to say that he knows many people who want the facility of a digital locker but who do not want an Aadhaar card. He met students who he trains in the use of the Right to Information Act, he met their parents as well. They all want to upload their certificates, etc. in the Digital Locker but they do not have an Aadhaar card or do not want one. Because of this, they are being denied the use of this service. The petitioner argues and rightly so, that this is a denial of equality before the law.

Yadav has an interesting profile. He complains that he repeatedly visits the Supreme Court to file petitions based on the information receives, commutes 100 kilometres and finds all his representations thrown in the waste basket. He is not a lawyer, but one conversation with him convinced me that the ordinary people of the country often know more law than lawyers and judges do. They make law with their feet, by filing petitions that raise issues of great constitutional significance.

Are orders of the Supreme Court merely decorative? The Union of India is the Union of India under any government and the orders of the court are as binding now as they were when passed.

In my opinion, the issues involved with the Digital Locker and Aadhaar are far more fundamental and go beyond violations of the right to equality.

Not too long ago, I along with others had represented a petitioner in which he complained that a company registered in the US was making available call details of just about anyone for a price. Who you called, when you called, what was and is your location – all this was freely available for a price, officially, with payment by credit card. The petition also mentioned that intelligence agencies in India were using this service. The court had issued notice to the Union of India on the petition which demanded that this website be blocked and that governmental agencies not use this service. The petition is in cold storage.

When I asked Sudhir Yadav why he filed this petition, he said that he did not want to purchase space on Google and/or iCloud as he could not be sure that the privacy of his data would be maintained. With Digital Locker offering storage space, he would prefer to use an Indian government service since he could hold the government accountable, but not Google which may or may not be subject to the jurisdiction of the Indian courts.

Speaking for myself, I am not so sure that my privacy will be guaranteed and regardless of whether or not I have an Aadhar card, I will not use the Digital Locker.

We do not have a data protection law in India, nor a law relating to privacy. In a society in which data can be so easily made public, how can one trust the Digital Locker to be secure? In any event, users of the Digital Locker need a constitutional and legal guarantee of security and privacy before they consider using the facility. Our law makers notoriously function through leaks, so do law enforcement agencies. I am not an expert on the use of cyberspace but I have met some very significant whistleblowers who I represent in court, who have taught me that cyberspace can be easily hacked and is invaded, and that the data of law enforcement agencies is deleted when it is not convenient to them. Any Digital India scheme must be accompanied or rather preceded by a Data Protection and Privacy law. I for one, will not use it until I have these guarantees.

Indira Jaising is a senior advocate in the Supreme Court and a former Additional Solicitor General of India.